DWI Newsletter

September 2016

by Judge Laura A. Weiser, Judicial Resource Liaison

U.S. Supreme Court

Utah v. Strieff No. 14-1373 579 US ____(2016) decided 6/20/16

This is the Supreme Court’s first decision on the Fourth Amendment exclusionary rule in five years. Utah Detective Douglas Fackrell received an anonymous tip about drug sales at a South Salt Lake City residence. The detective surveilled the area intermittently over the course of about a week and due to the number of people making brief visits to the house, he concluded that there was drug activity taking place. Fackrell saw Edward Joseph Strieff, Jr. leaving the residence and stopped him for questioning. During the stop, Fackrell ran Strieff’s identification and discovered Strieff had an outstanding warrant and arrested him. During the search after his arrest, Fackrell found methamphetamine and a drug pipe on Strieff’s person.

The district court ruled that, although Fackrell did not have enough evidence to conduct an investigatory stop, the methamphetamine and drug paraphernalia were obtained during a lawful search incident to arrest. That justified the admission of that evidence during the trial. The Utah Court of Appeals affirmed the district court’s ruling. The Utah Supreme Court reversed and held that the evidence should have been suppressed because the warrant that was the basis for the arrest was discovered during an unlawful investigatory stop.

The question before the Supreme Court was whether evidence seized incident to a lawful arrest on an outstanding warrant should be suppressed because the warrant was discovered during an investigatory stop later found to be unlawful?
Justice Thomas, writing for the majority, held that after an application of the attenuation factors outlined in Brown v. Illinois, 422 U.S. 590, “the evidence discovered on Strieff’s person was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. Although the illegal stop was close in time to Strieff’s arrest, that consideration is outweighed by two factors supporting the State: (1) The outstanding arrest warrant for Strieff’s arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff; and,(2) it is especially significant that there is no evidence that Officer Fackrell’s illegal stop reflected “flagrantly unlawful police misconduct.”

Justice Sotomayor dissented, joined in parts I, II, and III by Justice Ginsburg.
Justice Kagan also dissented, joined by Justice Ginsburg.

You may read the majority opinion and the dissenting opinions here.

Birchfield v. North Dakota, 14-1468 decided 6/23/16

Danny Birchfield drove into a ditch in Morton County, North Dakota. When police arrived on the scene, they administered both the field sobriety tests and the preliminary breath test. He was arrested, but he refused to consent to a blood test. No warrant for a blood test was obtained. Birchfield was charged with a misdemeanor for refusing to consent to a chemical test in violation of state law. He moved to dismiss the charge and claimed that the state law violated his Fourth Amendment right against unreasonable search and seizure. The Court joined two other similar cases: (1) Bernard v. Minnesota, 14-1470. Police were called to the South St. Paul boat launch where three men were attempting to pull their boat out of the water and onto their truck. William Robert Bernard, Jr., admitted he had been drinking and had the truck keys in his hands, but he denied driving the truck and refused to perform a field sobriety test. He was arrested on suspicion of driving while impaired (DWI) and taken to the police station, where he refused to consent to a warrantless breath test in violation of Minnesota state law. Bernard was charged with two counts of first-degree test refusal pursuant to state law; and (2) Beylund v. Levi, 14-1507. Steve Beylund consented to a blood alcohol to test to confirm he was driving under the influence after being informed it was a criminal offense in North Dakota to refuse a blood alcohol test. The test confirmed he was over the legal limit, and Beylund was charged with driving under the influence. All three defendants argued that criminalizing a refusal to submit to a warrantless chemical test for alcohol violates the 4th Amendment.

Justice Alito wrote the majority opinion in which the court held:

The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.
The Court analyzed the warrantless breath tests and blood tests as searches incident to arrest.
The Court found that the breath tests do not implicate significant privacy concerns. The intrusion is negligible and entails a minimum of inconvenience. The Court also noted that a breath test only yields a BAC reading and leaves no biological sample in the government’s possession and finally, that participation in a breath test is not likely to enhance the embarrassment inherent in any arrest.
The Court then noted that the same findings could not be stated for blood tests. They require piercing of the skin and extracting a part of the subject’s body. The Court found blood tests to be significantly more intrusive than blowing into a tube. The Court also noted that a blood test gives law enforcement a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading.

This holding resulted in a reversal and remand of Birchfield v. North Dakota, an affirmation of Bernard v. Minnesota and a vacate and remand of Beylund v. Levi to determine whether consent was given voluntarily in light of the opinion in this case.

Justice Sotomayor wrote a dissenting opinion in which Justice Ginsburg concurred in part and dissented in part.

 You may read those opinions here.

Texas Court of Criminal Appeals:

Leming v. State of Texas PD-0072-15 Texas Court of Criminal Appeals, April 13, 2016 Motion for Rehearing filed 6/10/16.

This case changes the way several courts of appeals have construed Section 545.060(a) of the Texas Transportation Code. See Atkinson v. State, 848 S.W.2d 813 (Tex. App.─Houston [14th Dist.] 1993 no pet.); Hernandez v. State, 983 S.W.2d 867 (Tex. App. ─ Austin 1998, pet. ref’d.); State v. Houghton, 384 S.W.3rd 441 (Tex. App.─Fort Worth 2012, no pet.); and United States v. Raney, 633 F.3rd 385 (5th Cir. 2011). These decisions held that a driver must both fail to maintain a single lane as far as is practical and change lanes without checking to assure the maneuver can be accomplished safely in order to violate Section 545.060(a) TTC.

Since statutory construction is a question of law, the Court of Criminal Appeals conducted a de novo review. The Court rejected Atkinson’s formulation of the elements and relied on Section 22 of the same legislation that first enacted Section 545.060 that makes it an offense either “to do any act forbidden or fail to perform any act required by this Act” The Court held that 545.060 contains two separate, actionable offenses: (1) to fail to remain entirely within a marked lane of traffic so long as it remains practical to do so and (2) to change marked lanes when it is unsafe to do so.
There was no factual assertion that the Appellant had changed marked lanes when it was unsafe to do so. The video established that the tires of Appellant’s vehicle were on the divider stripes but did not clearly show that the vehicle entered into the next lane.

The Court then found it unnecessary to answer the question of whether the arresting officer had a reasonable suspicion that the Appellant failed to drive nearly as practical entirely within a single lane of traffic, holding that in order for a peace officer to stop a motorist to investigate a traffic infraction, proof of the actual commission of the offense is not a prerequisite.

The Court found that the peace officer’s observation that Appellant had several times at least come very close to entering the adjacent lane coupled with a citizen’s report of a vehicle matching the description of Appellant’s vehicle “swerving from side to side” was sufficient information to justify a temporary detention to investigate whether Appellant had actually failed at some point to remain in his dedicated lane of traffic as far as it was practical to do so under the circumstances.

The Court also found that there was an objective basis by which the peace officer could have harbored a reasonable suspicion that Appellant was driving while intoxicated, and he could have detained the Appellant to investigate that offense as well.

Judge Yeary announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, and IV in which Presiding Judge Keller and Judges Meyers, Alcala and Richardson joined, and an opinion with respect to Part II in which Presiding Judge Keller, and Judges Meyers and Richardson joined.
Judge Richardson filed a concurring opinion in which Judge Meyers joined.
Judge Keasler filed a dissenting opinion in which Judges Johnson and Hervey joined.
Judge Newell filed a dissenting opinion.

You may read the Court’s opinion here; Judge Keasler’s dissenting opinion here; Judge Newell’s dissenting opinion here; and Judge Richardson’s concurring opinion here.

Smith v. State PD-1615-14 Texas Court of Criminal Appeals Motion for Rehearing filed 7/6/16

Appellant was stopped for failure to wear a seatbelt. After the initial stop, the State Trooper noticed signs of intoxication including an extremely strong smell of alcohol, glassy and bloodshot eyes and slightly delayed movement. After performing field sobriety tasks, appellant was arrested for driving while intoxicated. Appellant refused to take a breath test. Upon discovery that appellant had two prior convictions for DWI, he was taken to the hospital for a blood draw. Results of the analysis of that blood sample revealed a blood alcohol concentration of .21 grams of alcohol per 100 milliliters of blood.

During a bench trial, evidence of the blood draw and the resulting analysis was offered by the state through forensic scientist, Emily Bonvino. Appellant made an objection that the blood was drawn without a warrant in violation of the Fourth Amendment. The court did not rule on the objection indicating “Okay. Well, I’ll carry that. I’ll carry that because I think that’s an interesting issue.” After further discussion, the trial judge stated, “In terms of the constitutional issue, I’ll reserve that – that issue, but it’s admitted at this time.” Defense counsel then asked, “Regarding that issue, will we have an opportunity to brief that issue?” The trial judge responded, “You will.” After discussing the probability that cases have been decided that are relevant to the issue, the trial judge stated, “All right. And I guess State’s Exhibit No. 2 is admitted into evidence.”

At the conclusion of the trial, appellant was found guilty of Driving While Intoxicated. Appellant was sentenced to twenty-five years in prison, the minimum punishment due to the existence of prior felony convictions used for enhancement purposes.

On appeal, appellant complained of the admission of the blood sample because the blood was drawn in violation of the Fourth Amendment. The Court of Appeals agreed and reversed the appellant’s conviction and remanded the case to the trial court.

In its Petition for Discretionary Review, the State claimed appellant failed to preserve error because he failed to object to testimony about the blood test results. Alternatively, the State claimed that appellant failed to preserve error because he failed to secure a final ruling until after the close of evidence. Appellant contended that the time in which a ruling is obtained is not as crucial in a bench trial because the judge is aware of the substance of the motion regardless of when the defendant finally argues it.

The Court of Criminal Appeals disagreed with both parties that a ruling on appellant’s Fourth Amendment complaint was obtained after the close of the evidence. The ruling concerned appellant’s motion for an instructed verdict. The Court, citing Moff v. State, 131 S.W.3rd 485, 489-90 (Tex. Crim. App. 2004), which held that a ruling on a motion for instructed verdict is not the same as a ruling on the admission of evidence. The Court noted that, after finding the appellant guilty, the trial judge reiterated that the Fourth Amendment issue had not been resolved. Appellant never asked for a ruling on the issue, nor did he object to the trial judge’s failure to rule. Consequently, appellant failed to preserve error with respect to that complaint.

The Court also noted that appellant failed to object when Bonvino testified on three occasions about the results of the blood test. The Court noted that it is well settled that the erroneous admission of testimony is not cause for reversal if the same fact is proven by other testimony not objected to.

The Court reversed the judgment of the Court of Appeals and remanded the case to the Court of Appeals to consider appellant’s remaining points of error.

Presiding Judge Keller announced the judgment of the Court and delivered an opinion in which Judges Keasler, Hervey and Yeary joined.
Judge Richardson filed a dissenting opinion in which Judge Meyers, Johnson and Alcala joined. Judge Newell concurred.

You may read the Court’s opinion here and the dissenting opinion here.
Cole v. State PD-0077-15 Texas Court of Criminal Appeals 5/25/16

Appellant moved to suppress the results of a warrantless blood draw at his trial for intoxication manslaughter. The trial court denied the motion and found that there were exigent circumstances that made obtaining a warrant impractical. The court of appeals did not so find and reversed the trial court’s decision. The Court of Criminal Appeals concluded that there were exigent circumstances and that the warrantless search was justified under the exigency exception to the requirement of a warrant under the Fourth Amendment.

Those exigent circumstances included:
The amount of time it took for the arresting officer to investigate the accident scene that took up an entire city block; (3 hours); (2) the arresting officer testified that it was not feasible for him to leave the accident scene and that no one else was capable of determining the nature or cause of the accident and who was at fault; (3) The fourteen officers who were present on the scene were all performing important law enforcement or public safety duties and could not be called away from the scene; (4) Even if the arresting officer had attempted to obtain a warrant from an on-call magistrate, the issuance of a warrant would have taken an hour to an hour and a half “at best” and the uncertainty of appellant’s physical condition and his admission that he had used “meth” created a concern that medication administered at the hospital could affect any subsequent blood sample; and (5) the officer did not know the elimination rate of methamphetamine so did not know how much evidence would be lost as time passed.

Judge Keasler delivered the opinion of the Court, in which Presiding Judge Keller and Judges Meyers, Hervey, Alcala, Richardson, and Newell joined.
Judge Johnson, filed a dissenting opinion.
Judge Yeary concurred.

You may read the majority opinion here and the dissenting opinion here.

Weems v. State PD-0635-14 5/25/16 Motion for Rehearing filed on 6/9/16

Appellant was involved in a one car accident. A passing car stopped after seeing the car on its roof with its tires spinning. The driver of the passing car witnessed appellant climb out of the driver’s side window. He exhibited signs of intoxication including stumbling and difficulty maintaining balance. The witness asked if appellant was okay or if he was drunk. Appellant said he was drunk and then fled the scene. When a Bexar County Sheriff’s Deputy (Munoz) arrived on the scene a woman waved him down and told him that someone was under her car. The deputy saw an injured man under the car who matched the description of the driver of the wrecked car. Appellant was detained. Munoz noted appellant’s bloodshot eyes, slurred speech, bloodied face and inability to stand on his own. Appellant was taken into custody by another Bexar County Sheriff’s deputy (Bustamante). No field sobriety tasks were conducted due to appellant’s injuries.

Appellant refused to give a blood or breath sample. He was treated at the scene by EMS and then transported to University Hospital complaining of neck and back pain. Officer Bustamante followed the ambulance to the hospital. The hospital was located just minutes from the accident scene.

When Bustamante arrived at the hospital, he filled out a form requesting a blood draw and gave it to the nurse in charge. Appellant’s blood was drawn at 2:30am over two hours after his arrest. The blood test result was .18 grams per deciliter.

At trial, appellant moved to suppress the blood test results relying on Missouri v. McNeely, 133 S.Ct. 1552 (2013). The trial judge overruled appellant’s objection and the blood test was admitted. Appellant was convicted of felony DWI and sentenced to eight years confinement.

On appeal, the Fourth Court of Appeals held that failing to suppress the warrantless blood draw results was harmful error. The court found that the record developed at trial did not support admitting the evidence under the exception of exigent circumstances.

The Court of Criminal appeals considered the totality of the circumstances and agreed with the appellate court that the record did not support a finding of exigent circumstances. The record was silent as to the procedures for obtaining a warrant when an arrestee is transported to a hospital. Without that information, the Court was unable to weigh the time and effort required to obtain a warrant against the circumstances that informed Bustamante’s decision to order a warrantless blood draw. The Court considered the following factors that weighed against exigency: The hospital was only a couple of minutes away, so transporting the appellant to the hospital did not necessarily make obtaining a warrant impractical; Bustamante had another officer with him (Shannon) who waited with Bustamante and appellant at the hospital until the blood was drawn; and Shannon then transported the sample to an evidence locker at the Magistrate’s office for subsequent testing. The Court held that the State was unable to demonstrate that practical problems existed in obtaining a warrant within a timeframe that would still preserve the opportunity to obtain reliable evidence and thus failed to meet its burden to establish that exigent circumstances existed.

Judge Keasler delivered the opinion of the Court, in which Presiding Judge Keller and Judges Meyers, Johnson, Hervey, Alcala, Richardson, and Newell joined.
Judge Yeary did not participate.

You may read the opinion here.

DWI Court Team Basic Training
​February 27 - March 1, 2017
San Luis, Galveston, TX
Have you recently joined or created a DWI Court in your jurisdiction? Do you have new members on your established DWI Court Team? Have you been wondering what a DWI Court is and if it might be right for your community? Are you intrigued by the concept of a specialty court but would like to know more before jumping in?

If any of these questions apply to you, consider attending this very informative program. The Basic Training is modeled on the 10 Guiding Principles of DWI Courts and is designed to take the Court team through the various stages involved in planning and designing a DWI Court. You may come alone, with your team, with an exploratory committee or any other configuration that works for you. 

DWI Court Team Advanced Training
​March 2 - March 3, 2017
San Luis, Galveston, TX
Established DWI Court Judges and their teams are invited to register for this conference. New teams and team members may register for the entire week.
Have Gavel, Will Travel!

Do the judges in your courthouse or in your area have questions about impaired driving? Are you looking for an opportunity to bring together all the judges in your jurisdiction who handle impaired driving cases from bond to trial to supervision? Holly and I are happy to help. We will come to you and provide education on the impaired driving subjects you feel are needed.  We will handle designing a half day, full day or lunchtime presentation. You just need to give us a place, time and audience!

Contact Us

Judge Laura A. Weiser
Judicial Resource Liaison

Holly Doran
TxDOT Program Director

In the News


Repeat drunk driver gets 60 years for murder by vehicle
(MySA.com, 09/10/2016)
Zachary Lenius, a former gang member with multiple arrests for robberies and drunk driving, begged for leniency from a jury Friday that earlier found him guilty of killing a motorist in a 2014 head-on collision on O’Connor Road.

National Drug Court Institute Releases June 2016 Report
Painting the Current Picture: A National Report on Drug Courts and Other Problem-Solving Courts in the United States can be found here.

NHTSA Releases 2015 Survey of DWI Courts
A total of 156 out of 473 courts responded to the survey. Read the full survey results report here.

Free DWI Court Webinars from the National Center for DWI Courts (NCDC)
September 29 @ 1:00 pm Part 1: Compassion, Connection, Outcomes more information and registration can be found here.
October 27 @ 1:00 pm Part 2: Implementation of Concepts more information and registration can be found here.